I had a great medical malpractice defense team. Two partners defended me, and each struck me as knowledgeable and honest from the outset. I’m not alone, insofar as most physician-defendants I meet describe their med mal defense lawyers in glowing terms. Now and then, however, I hear from a physician whose experience with their medical malpractice defense attorney was or is less than ideal. How frustrating! On the one hand, they are in scary, unfamiliar territory, and on the other, they lack confidence in the person put there to lead them through it. As we wrap up this series on your relationship with your attorney, let’s ask: what can you do if your relationship with your med mal defense lawyer just isn’t working well?

Communicate Directly with the Lawyer

A good relationship between a med mal defense attorney and physician-defendant is as essential to good legal counsel as a good physician-patient relationship is to medical management. If you’re like me, you’ll want

• confidence that they are on top of things,

• integrity,

• mutual respect,

• and a grasp on how much the legal case matters to you.

Believe it or not, medical malpractice defense lawyers have lots in common with modern physicians. Many work very long hours, and burnout happens in the legal profession just like it does in medicine. They juggle numerous tasks at once, and occasionally, one may not get all the attention they’d like.

For all those reasons, if you’re feeling like your med mal defense attorney isn’t providing what you need, at whatever level, I’d suggest you start by attempting to identify the specific area(s) of concern and go to them directly with that information. My impression is that, as a group, trial lawyers are less conflict-averse than many physicians, so be courteous, but don’t beat around the bush. Just let them know you need for them to serve you better, and tell them how. Then watch for a change.

We all appreciate a patient who politely and clearly asks for what they need. I’m sure medical malpractice defense lawyers appreciate the same from us.

Communicate with your Malpractice Insurance Claims Manager

Dr. M (not her real initial) felt crushed when a young patient had a terrible and unexpected outcome. Like most primary doctors, she treasures her relationships with patients, bonding with them over years. With her permission, I’ll tell you that the loss deeply affected Dr. M, and sadness and self-doubt multiplied when a medical malpractice lawsuit ensued. 

Her medical malpractice insurance carrier assigned an experienced lawyer to her case. Over time, however, he proved unable to provide the kind of support she required. Anger permeated her tone as she described feeling criticized for shedding tears over her patient’s outcome and her distress over the lawsuit. Pressure to “pull it together” and suggestions that if she couldn’t control her emotions, she would make a “bad defendant” only augmented her litigation stress. In a situation that provokes grief and shame for many of us, Dr. M found herself increasingly riddled with a loss of self-confidence. As she said to me at one point, “I think this experience has ruined me.”

In time, the case resolved with a settlement. Unfortunately,no one alerted Dr. M in advance to the fact that in her particular state, all medical malpractice cases which end in a payment to the plaintiff trigger a review by the state’s medical licensing board. Quite naturally, the notice from the state’s licensing board brought her distress back to the surface.

Thankfully, Dr. M had the presence of mind to consider her options. Like most, her medical malpractice insurance policy included a provision for legal defense in dealings with the medical licensing board. However, she was very clear that she did not want to continue working with the lawyer previously assigned to her case. So, she inquired among her professional contacts and got the name of an alternative med mal defense attorney. She went to her med mal insurance carrier, told them she was not happy with the first lawyer, and requested her case be assigned to the woman who had come so highly recommended. Which it was.

 “The woman’s amazing,” she said. “It was like night and day!” Her advice? “If your lawyer makes you feel small, or more incompetent than you’re probably already feeling, you may need a new lawyer.”

Seek outside counsel

If you feel like you need a second opinion, hiring outside counsel is always an option. Big caveat: You will shoulder the cost of this outside counsel yourself. Costs can add up quickly, so think carefully about whether it will give you greater peace of mind or not to do so.

In particular, outside counsel may be of interest in any of the following situations:

1. The insurance company recommends a settlement while the physician-defendant feels clear that they have done nothing wrong and has strong feelings about not settling. 

2. Conversely, the insurance recommends letting the case move forward while the physician-defendant would rather negotiate a settlement.

3. The physician is concerned about other issues (asset protection or others) which are outside of the scope of work their med mal defense lawyer is contracted to do.

4. For whatever reason, the physician-defendant does not get an instinctual sense of trust in their lawyer.

On occasion, I hear physicians comment that all physician-defendants should hire outside counsel to review and monitor their legal case. These physicians argue that since med mal defense attorneys are generally paid by the insurance carrier or hospital who contracts with them, that is where their loyalty will lie and the physician-defendant’s interests will come a distant second. I was a little surprised by this line of thought, having experienced a sense of trust and reliability with my defense counsel. 

I ran this idea past a medical malpractice defense attorney in my region. The response reminded me of my response when a patient or their family suggests that I would make diagnostic or treatment choices based on what will be the most lucrative for me, or most convenient for the patient’s insurance carrier or the hospital where I work; I feel saddened and a little angry, honestly, because I feel so strongly that my first concern is always my patient! Similarly, he expressed that he doesn’t believe that’s how med mal defense attorneys work. He stated firmly that his ethical commitment is to the physician-defendant and that is whose interests he’s engaged in protecting.

I say all that to encourage you to let your intuition be your guide in this domain. At times, outside counsel may be helpful, but by no means is it a must, and my impression is that it is a small minority of physician-defendants who feel the need to take on that additional cost.

As always, I’d love to hear from you if you have further suggestions for physician-defendants who want a better relationship with their med mal defense attorney. And, new news: I plan to release my first online course in a few short weeks, covering everything you ever wanted to know about surviving Deposition!